Contraste de la hipótesis 1 Resultados en general

International Regulations

Introduction

Shipping is international in nature and, therefore, regulations adopted and, more importantly, implemented on the international level are needed to regulate this industry. On the national level, in order to set up an effective system of oil pollution prevention, preparedness and response, it is necessary to tie national laws and regulations to regional and international ones. In order for the above-mentioned system to be comprehensive, those conventions that regulate liability and compensation matters should also be included.

This chapter intends to consider the IMO’s so-called anti-pollution conventions which deal with oil pollution. It will also discuss their benefits for the required system of dealing with oil pollution and the implications their ratification might have for the Islamic Republic of Iran.

Advantages of International Conventions

In addition to regulating the international shipping and providing standard and uniform rules and regulations for that industry, international conventions (here and throughout this dissertation, referring to international conventions means only IMO conventions and protocols) make things easier for the countries which become parties to them. It can be argued here that although because of partial non-participation and non-involvement on the part of developing countries in drafting and adoption stages, the conventions adopted do not completely reflect the interests of such countries.

these countries can still benefit from these conventions. And one of these benefits, as Cowley (1989, page 16) has put it, is the “Reduction in costs to individual States in producing legislation and codes of practice.” This is not only true with regards to reducing costs, but also that international conventions contain a comprehensive study and careful considerations put into them after a long debate on die international level; so the parties to these conventions actually take a well-thought piece of legislation into their system.

Another point here is that nearly all of these conventions have the so-called “tacit amendment procedure” which is specially beneficial to developing countries. To get an international convention ratified by the parliament is indeed a very long process, especially in developing countries. To have an appreciation of the difficulties involved, the procedure which should be followed by PSO to get the ratification of the parliament for an international convention is briefly shown as follows:

• to get the text of a convention translated;

• to discuss the text within the Organization as well as with interested organizations;

• to get the necessary approval within the Ministry;

• to get the necessary approval from the Government (Board of Ministers); and • to, finally, submit it to the parliament for adoption.

The latter stage is the lengthiest and most difficult of all. Add to this the fact that most of the times the text is returned for correction or clarification and the procedure is repeated once again. It is clearly evident from the difficulties just mentioned that if this procedure were to be followed with each and every amendment, the author’s view is that, no progress would be made at all.

Implementation

“It is easy enough to ratify an international convention, but it is quite another matter to make sure that the convention is properly enforced.” (‘World Maritime...’, 1992, page 8). However, the coimtries which become parties to international conventions, especially developing countries, have problems implementing them and, as has been rightly stated by the current Secretary-General of IMO, Mr. O’Neil, in his message (‘World Maritime...’, 1993, page XVI), “part of the difficulty is that implementation is so difficult. It is costly, it is labor-intensive, it takes time to set up, it gains no political bonus and it makes no money.” This requires that the countries which are in

a developed stage assist the developing countries in this regard through IMO.

There have been attempts on the international level and within IMO to somehow correct this situation and the best successful example is the creation, in early 1990’s, of the Sub-Committee on Flag State Implementation. This Sub-Committee is the place where developing coimtries can identify their problems in implementing the conventions and seek assistance for overcoming those problems. The developing countries should also realize that there is the need to organize their system in such a way as to make sure that rules and regulations, whether national, regional or international, are properly implemented.

MARPOL 7Zn8

“Nowhere has the old adage ‘an ounce of prevention is worth a pound of cure’ been more true than in the transportation of oil” (Holt, 1990). It is very true that if a maritime administration puts more of its resources into preventing oil pollution in the first place, it will get better results. When an accident happens or oil is spilt during tanker or terminal operations, it is very hard, especially for limited available resources and expertise in developing countries, to restore the situation. If we take these shortcomings and add to them the fact that, as Reinigert (1990, page 7) states, “spill recovery and clean-up techniques are notoriously inefficient”, we should ask.

as Reinigert (1990, page 7) does, “...is it not just as important (perhaps more important) to prevent oils and chemicals entering the sea in the first place?”.

As was said earlier, the Persian Gulf is a place where oil is transported on a very large scale and it is more likely that incidents happening during normal terminal operations would be the biggest source of causing oil pollution in the area. This is also true on global basis as the following quotation, (‘Preventing Marine...’, 1995, page 1), shows:

The most common pollution incidents occur during terminal operations when oil is being loaded and discharged - perhaps as many as 92% of oil spills, according to figures published by the International Tanker Owners’ Pollution Federation.

The second likely source of pollution in the area is the discharge by tankers and other ships of their bilges and tank cleaning residues into these waters. To prevent oil pollution firom these two sources, it is necessary to have regulations on an international basis which give the maritime administration the necessary power to control shipping in the area. This can be achieved through ratifying the MARPOL Convention.

The International Convention for the Prevention of Pollution firom Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78) is definitely the parent convention and the most important one as regards prevention of marine pollution firom ships. There is no doubt that becoming a party to this Convention is absolutely necessary for a coxmtry intending to set up a system of oil pollution prevention, preparedness and response. However, there are many countries, especially those with large oil exports which are not parties to this Convention. The biggest problem is the requirement that Parties to MARPOL Convention should provide reception faciUties in almost all of their ports and oil temunals.

The Problem of Reception Facilities

“The provision of reception facilities for oily wastes is vital to the successful implementation of Maipol” (‘Report on Oily 1989). As was clearly shown in chapter IH of this paper, there have been laws and regulations since years ago in Iran which required the maritime administration to provide reception facilities, or make sure that ports and oil terminals provide them. However, many countries, like Iran, have not been able to provide them and still “lack of shore reception facilities remains the Achilles heel of the MARPOL regime”. (‘International Regimes’, 1990). The reasons why we witness lack of reception facilities around the world have been clearly explained, (‘MARPOL 73/78’, 1992, page 22), as follows:

Many countries which have large oil exports have so far failed to ratify MARPOL 73/78. One reason is that they would be obliged to provide reception facilities for oily wastes. The costs of doing so could be very great. Since most tank cleaning operations take place during the ballast stage of the tanker’s voyage, the reception facilities required at an oil loading port, therefore, are much greater than those needed elsewhere.

The above quotation is very clear and needs no complementary remarks and there is no more for the author to add except that apart from the financial implications of establishing reception facilities in ports and oil terminals, the problem of operating them remains there. Another problem here is also what to do with the collected oily wastes. It is not certainly within the terms of reference and expertise of the maritime administration, at least in the case of PSO, to take on the responsibilities of disposing of these wastes. The proposed system in the next chapter and the experts in there should think of the ways and means of tackling with this problem. However, the suggestion here is that these things should be left to the people in the oil industry.

How to Overcome This Problem

It is clearly evident that this problem, on one hand, prevents coimtries, especially the developing ones, from becoming parties to MARPOL and, on the other hand, even those coimtries which have ratified the Convention, are not able to provide adequate reception facilities in their ports and oil terminals. It seems that the only way to overcome this problem is to address the matter on a global basis, because if a certain tanker on its ballast voyage to a loading terminal, retains its oily wastes on board to discharge in reception facilities there, this means that the coastlines of all countries passed on that voyage are protected and “it would seem inequitable, therefore, to .expect developing countries to meet the cost of ballast reception facilities as required by MARPOL” (Report Highlights ..1990).

This has been realized by the international maritime community since some years ago and some studies have been carried out to find a solution. According to ICS (‘Reception Facilities... 1995):

A joint study by UNDP and IMO recommends that the feasibility of establishing a global fimding mechanism for reception facilities should be explored. The proposal assumes that where a port provides facilities, all ships using the port will contribute to the cost of the facilities whether they use them or not.

Apart from these attempts on the international level, this problem could be tackled, at least provisionally, in some other ways. There has been a good example in this regard and that is that, “Smit Tak’s barges collect oily slops and wastes and then deliver them to a reception facility at a distance” (‘New Solutions...’, 1990). This is a good idea and this service can be done either by the available resources to the oil industry in the Persian Gulf area or by private companies.

There is not more to be added by the author here except re-emphasizing that this Convention, that is MARPOL, is very important for prevention of, among other

things, oil pollution from ships and, therefore, it is strongly suggested that the Islamic Republic of Iran become a party to it as soon as possible. However, PSO should closely follow the developments with regards to finding a global fimding solution to this problem.

OPRC 1990

Preventing oil pollution in the first place is what the MARPOL regime has done since its entry into force in 1983; and this is manifested by reduction of oil entering the sea. But whatever possible and effective measures for prevention of oil pollution are taken, accidents are not going to disappear altogether and oil spills may happen at any time and anywhere; so there is always the need to be prepared for them.

To be prepared in an effective manner, each country needs to have the necessary organization, plans and equipment in place to be ready to respond to oil pollution incidents in the marine environment. This is not as easy for the countries to do as it looks and “as the Exxon Valdez revealed, even the United States had no centralized source of information on nationwide anti-pollution resources” (‘In Defense....’, 1990, page 4). Moreover, dealing with major oil spills is beyond the ability of a single country in most cases. This is because it is not reasonable, on one hand, to have equipment and personnel in such a quantity that is needed to respond to a major oil spill and, on the other hand, many countries simply cannot afford to be prepared for the “worst probable scenario”. Therefore, there is the need to do this on an international basis so that the resources can be utilized in the best way possible. The International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990 (OPRC) was a response to this need in the world maritime community. It was created “to facilitate international cooperation and mutual assistance in preparing for and responding to a major oil pollution incident and to encourage States to develop and maintain an adequate capability to deal with oil

pollution emergencies” (‘OPRC Convention...’, 1994, page 1). The OPRC Convention will certainly improve existing international arrangements for combating major incidents or threats of marine pollution.

The OPRC Convention proved its effectiveness shortly after it was adopted when IMO used it as a basis to help respond to the massive oil spill which had been resulted firom hostilities in the Persian Gulf in early 1991. IMO was able to provide quick and effective assistance that saved many sensitive areas from serious damage. Quick response to oil spills is very important and, therefore, in the words of IMO’s Secretary-General, “this Convention [OPRC] may make all the difference in an emergency, when effective action in the first 12 hours determines success or failure” (‘In Defense...’, 1990, page 4). This can be achieved by “stockpiling of anti­ pollution equipment, the training of spill response personnel and the provision of communications and response coordination networks” (‘OPRC: a Swift...’, 1990). This Convention is essential for a country wishing to establish a national system of oil pollution preparedness and response; so, becoming a party to OPRC by the Islamic Republic of Iran is strongly suggested. In the author’s view, there seems to be no major implications for the country in being a party to OPRC. This Convention will certainly “result in major improvements in the level of preparedness and coordinated response capability at both national and international level” (‘OPRC: a Swift...’, 1990).

CLC and FUND Conventions

In order to have a comprehensive system for oil pollution prevention, preparedness and response, in addition to ratifying MARPOL and OPRC Conventions, there is the need to ratify the conventions dealing with liability and compensation issues relating to oil pollution damage. Not only do these conventions aim to provide the victims of

suffered because of the incident, but also they make it possible for the responding authority, in this case, the Ports and Shipping Organization, to recover any expenses made by it to prevent damage and restore the situation.

The International Convention on Civil Liability for Oil Pollution Damage (CLC), 1969 and its related Protocols of 1976 and 1992 make a system whereby the shipowner is liable to pay compensation to pollution victims. This Convention has been under consideration by PSO for some time and measures have been taken to ratify it; so there is no need for the author to dwell on the importance of this Convention and its benefits to the Country.

The International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND), 1971 and its Protocols of 1976 and 1992 complement the CLC regime and establish a fund which collects contributions from “receivers of contributing oil” and pays compensation to the victims and to responders for their restoration activities or other preventative measures.

Although it is not the intention of the author to go into details regarding how the FUND Convention works, there are some ambiguities in interpreting the provisions of this Convention and, therefore, the following quotation, (Jacobsson, 1995, page 5), is reproduced here as a help for those who are considering this Convention for ratification:

Contributions are levied on any person who has received crude oil and heavy fuel oil (“contributing oil”) in a quantity exceeding 150,000 tons in one calendar year after it is received at ports or terminal installations in a FUND Member State after carriage bv sea. The term “received” refers to receipt into tankage or storage immediately after carriage by sea. The place of loading is irrelevant in this context; the oil may be imported from abroad, carried from another port in the same State or transported by ship from an off-shore

production rig. Also oil received for transhipment to another port or received for further transport by pipeline is considered as received for contribution purposes.

The author of this dissertation finds no problems with this Convention and believes that the Islamic Republic of Iran should become a party to it. In view of the discontinuation of TOVALOP and CRISTAL regimes after 20 February 1997, it is very much advisable that the Islamic Republic of Iran becomes party to these two conventions as soon as possible.

What seems to hinder the quick ratification of the FUND Convention is the concern about the amount of contribution that the oil industry should pay to the FUND. However, the author is of the view that the amount of contribution for the Country cannot be very high because the Islamic Republic of Iran is not an importer of crude and heavy fuel oil which fall under the definition of contributing oil in the FUND Convention. Moreover, close consideration of the yearly contributions paid by FUND Member States shows that the amounts per ton of “contributing oil” are very small indeed. For example, according to lOPC Fund (1994, page 21), the per-ton contributions figure for 1994 was only £0.03894 which, when compared with huge benefits for the victims and the possibility of recovering response costs, the amount of contribution paid is insignificant.

Conclusions

The international conventions dealing with oil pollution were examined in this chapter and the conclusion was that becoming party to all of these four conventions, namely MARPOL, OPRC, CLC, and FUND, is necessary for having a comprehensive regime of oil pollution prevention, preparedness and response. The problem of reception facilities was examined when considering MARPOL Convention and ways and means of solving it were also discussed.

In the next chapter, based on what was presented in chapters I through V, a system will be proposed for oil pollution prevention, preparedness and response.

V